68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2300
House Bill 2768
Sponsored by Representative MINNIS
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Allows defendant to use surety release bond issued by Oregon
surety insurer as security for pretrial release or release
pending appeal. Gives defendant who fails to appear 180 days to
demonstrate that failure is no fault of defendant.
A BILL FOR AN ACT
Relating to release of criminal defendants; amending ORS 135.230,
135.255, 135.265, 135.280 and 135.285.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 135.230 is amended to read:
135.230. As used in ORS 135.230 to 135.290, unless the context
requires otherwise:
(1) 'Abuse' means:
(a) Attempting to cause or intentionally, knowingly or
recklessly causing physical injury;
(b) Intentionally, knowingly or recklessly placing another in
fear of imminent serious physical injury; or
(c) Committing sexual abuse in any degree as defined in ORS
163.415, 163.425 and 163.427.
(2) 'Conditional release' means a nonsecurity release
{ - which - } { + that + } imposes regulations on the
activities and associations of the defendant.
(3) 'Domestic violence' means abuse between family or household
members.
(4) 'Family or household members' means any of the following:
(a) Spouses.
(b) Former spouses.
(c) Adult persons related by blood or marriage.
(d) Persons cohabiting with each other.
(e) Persons who have cohabited with each other or who have been
involved in a sexually intimate relationship.
(f) Unmarried parents of a minor child.
(5) 'Magistrate' has the meaning provided for this term in ORS
133.030.
(6) 'Personal recognizance' means the release of a defendant
upon the promise of the defendant to appear in court at all
appropriate times.
(7) 'Release' means temporary or partial freedom of a defendant
from lawful custody before judgment of conviction or after
judgment of conviction if defendant has appealed.
(8) 'Release agreement' means a sworn writing by the defendant
stating the terms of the release and, if applicable, the amount
of security.
(9) 'Release criteria' includes the following:
(a) The defendant's employment status and history and financial
condition;
(b) The nature and extent of the family relationships of the
defendant;
(c) The past and present residences of the defendant;
(d) Names of persons who agree to assist the defendant in
attending court at the proper time;
(e) The nature of the current charge;
(f) The defendant's prior criminal record, if any, and, if the
defendant previously has been released pending trial, whether the
defendant appeared as required;
(g) Any facts indicating the possibility of violations of law
if the defendant is released without regulations;
(h) Any facts tending to indicate that the defendant has strong
ties to the community; and
(i) Any other facts tending to indicate the defendant is likely
to appear.
(10) 'Release decision' means a determination by a magistrate,
using release criteria, { - which - } { + that + }
establishes the form of the release most likely to insure the
defendant's court appearance and insure that the defendant does
not engage in domestic violence while on release.
(11) 'Security release' means a release { + agreement + }
conditioned on a promise to appear in court at all appropriate
times { - which - } { + that + } is secured by cash, stocks,
bonds { + , + } { - or - } real property { + or a surety
release bond + }.
(12) 'Surety' is { + : + }
{ + (a) + } { - one - } { + A person + } who
{ - executes a security release and binds oneself - }
{ + agrees + } to pay the security amount if the defendant fails
to comply with the release agreement { + by signing the release
agreement to that effect; or
(b) An authorized Oregon surety insurer that issues to the
defendant a surety release bond that the defendant posts as
security.
(13) 'Surety release bond' means a written undertaking by an
authorized Oregon surety insurer under ORS 742.350 that the
defendant shall appear at all times as ordered by the court
according to the general conditions of a release agreement as
provided in ORS 135.250 and the terms of any release agreement
executed by the defendant, and that if the defendant fails to
appear as ordered by the court, the face value of the bond is
subject to forfeiture as provided under ORS 135.230 to
135.290. + }
SECTION 2. ORS 135.255 is amended to read:
135.255. (1) The defendant shall not be released from custody
unless the defendant files with the clerk of the court in which
the magistrate is presiding a release agreement duly executed by
the defendant containing the conditions ordered by the releasing
magistrate or { + the conditions of a security release and + }
deposits { + any required + } security in the amount specified
by the magistrate in accordance with ORS 135.230 to 135.290.
(2) A failure to appear as required by the release agreement
shall be punishable as provided in ORS 162.195 or 162.205.
(3) 'Custody' for purposes of a release agreement does not
include temporary custody under the citation procedures of ORS
133.045 to 133.080.
SECTION 3. ORS 135.265 is amended to read:
135.265. (1) If the defendant is not released on personal
recognizance under ORS 135.255, or granted conditional release
under ORS 135.260, or fails to agree to the provisions of the
conditional release, the magistrate shall set a security amount
that will reasonably assure the defendant's appearance. The
defendant shall execute the security release { + and provide
security + } in the amount set by the magistrate.
(2) The defendant { - shall execute a - } { + may provide
security for the + } release agreement { - and deposit - }
{ + by depositing + } with the clerk of the court before which
the proceeding is pending a sum of money equal to 10 percent of
the security amount, but in no event shall such deposit be less
than $25. The clerk shall issue a receipt for the sum deposited.
Upon depositing this sum the defendant shall be released from
custody subject to the condition that the defendant appear to
answer the charge in the court having jurisdiction on a day
certain and thereafter as ordered by the court until discharged
or final order of the court. Once security has been given and a
charge is pending or is thereafter filed in or transferred to a
court of competent jurisdiction the latter court shall continue
the original security in that court subject to ORS 135.280 and
135.285. When conditions of the release agreement have been
performed and the defendant has been discharged from all
obligations in the cause, the clerk of the court shall return to
the person shown by the receipt to have made the deposit, unless
the court orders otherwise, 85 percent of the sum { - which - }
{ + that + } has been deposited and shall retain as security
release costs 15 percent, but not less than $5 nor more than
$200, of the amount deposited. The interest that has accrued on
the full amount deposited shall also be retained by the clerk.
The amount retained by the clerk of a circuit or district court
shall be paid over as directed by the State Court Administrator
for deposit in the Criminal Fine and Assessment Account created
under ORS 137.300. The amount retained by a justice of the peace
shall be deposited in the county treasury. The amount retained by
the clerk of a municipal court shall be deposited in the
municipal corporation treasury. At the request of the defendant
the court may order
{ - whatever - } { + that the + } amount { - is - }
repayable to { + the + } defendant from
{ - such - } { + the + } security { - amount to - }
{ + shall + } be paid to { + the + } defendant's attorney of
record.
(3) { - Instead of the security deposit provided for in
subsection (2) of this section the defendant may deposit - }
{ + The defendant may provide security for the release agreement
by depositing + } with the clerk of the court an amount equal to
the security amount in cash, stocks, bonds, or real or personal
property situated in this state with equity not exempt owned by
the defendant or sureties worth double the amount of security set
by the magistrate. The stocks, bonds, real or personal property
shall in all cases be justified by affidavit. The magistrate may
further examine the sufficiency of the security as the magistrate
considers necessary.
{ + (4) The defendant may provide security for the release
agreement by delivering to the clerk of the court a surety
release bond having a face amount equal to the security amount
set by the magistrate. + }
SECTION 4. ORS 135.280 is amended to read:
135.280. (1) Upon failure of a person to comply with any
condition of a release agreement or personal recognizance, the
court having jurisdiction may, in addition to any other action
provided by law, issue a warrant for the arrest of the person at
liberty upon a personal recognizance, conditional or security
release.
(2) A warrant issued under subsection (1) of this section by a
municipal officer as defined in ORS 133.030 (6) may be executed
by any peace officer authorized to execute arrest warrants.
(3) If the defendant does not comply with the conditions of the
release agreement, the court having jurisdiction shall enter an
order declaring the entire security amount to be forfeited.
Notice of the order of forfeiture shall be given forthwith by
personal service, by mail or by { - such - } { + any + }
other means as are reasonably calculated to bring to the
attention of the defendant and, if applicable, of the sureties,
the order of forfeiture. If, within { - 30 - } { + 180 + }
days after the court declares the forfeiture, the defendant does
not appear or satisfy the court having jurisdiction that
appearance and surrender by the defendant was, or still is,
impossible and without fault of the defendant, the court shall
enter judgment for the state, or appropriate political
subdivision thereof, against the defendant and, if applicable,
the sureties, for the amount of security and costs of the
proceedings. At any time before or after judgment for the amount
of security declared forfeited, the defendant or the sureties may
apply to the court for a remission of the forfeiture. The court,
upon good cause shown, may remit the forfeiture or any part
{ - thereof - } { + of the forfeiture + }, as the court
considers reasonable under the circumstances of the case.
(4) When judgment is entered in favor of the state, or any
political subdivision of the state, on any security given for a
release, the judgment may be enforced as a judgment in a civil
action. If entered in circuit court, the judgment shall be
docketed, and if entered in district court may be docketed, as a
civil judgment under ORS chapter 18. The district attorney,
county counsel or city attorney may have execution issued on the
judgment and deliver same to the sheriff to be executed by levy
on the deposit or security amount made in accordance with ORS
135.265. The proceeds of any execution shall be used to satisfy
the judgment and costs and paid into the treasury of the
municipal corporation wherein the security was taken if the
offense was defined by an ordinance of a political subdivision of
this state, or paid into the treasury of the county wherein the
security was taken if the offense was defined by a statute of
this state and the judgment was entered by a justice's court, or
paid over as directed by the State Court Administrator for
deposit in the Criminal Fine and Assessment Account created under
ORS 137.300, if the offense was defined by a statute of this
state and the judgment was entered by a circuit or district
court. The provisions of this section shall not apply to:
(a) Money deposited pursuant to ORS 153.540 for a traffic
offense.
(b) Money deposited pursuant to ORS 153.355 for a boating
offense.
(c) Money deposited pursuant to ORS 153.745 for a wildlife or
commercial fishing offense.
(5) When the judgment of forfeiture is entered, the security
deposit or deposit with the clerk is, by virtue of the judgment
alone and without requiring further execution, forfeited to and
may be kept by the state or its appropriate political
subdivision. The clerk shall reduce, by the value of the deposit
so forfeited, the debt remaining on the judgment and shall cause
the amount on deposit to be transferred to the revenue account of
the state or political subdivision thereof entitled to receive
the proceeds of execution under this section.
(6) { - The - } Stocks, bonds, personal property and real
property { + taken as security + } shall be sold in the same
manner as in execution sales in civil actions and the proceeds of
such sale shall be used to satisfy all court costs, prior
encumbrances, if any, and from the balance a sufficient amount to
satisfy the judgment shall be paid into the treasury of the
municipal corporation wherein the security was taken if the
offense was defined by an ordinance of a political subdivision of
this state, or paid into the treasury of the county wherein the
security was taken if the offense was defined by a statute of
this state and the judgment was entered by a justice's court, or
deposited in the General Fund available for general governmental
expenses if the offense was defined by a statute of this state
and the judgment was entered by a circuit or district court. The
balance shall be returned to the owner. The real property sold
may be redeemed in the same manner as real estate may be redeemed
after judicial or execution sales in civil actions.
SECTION 5. ORS 135.285 is amended to read:
135.285. (1) If circumstances concerning the defendant's
release change, the court, on its own motion or upon request by
the district attorney or defendant, may modify the release
agreement or the security release.
(2) After judgment of conviction in municipal, justice or
district court, the court shall order { + that: + }
{ + (a) + } The original release agreement, and if
applicable, the security, { - to - } stand pending appeal,
{ - or deny, increase or reduce the release agreement and the
security. If a defendant appeals after judgment of conviction in
circuit court for any crime other than murder or treason, release
shall be discretionary. - } { + except as provided in
subsection (3) of this section;
(b) The original release agreement be terminated and the
defendant be released pending appeal only if the defendant
executes a new release agreement that may contain new or
additional conditions imposed by the court and that may require
greater or lesser security than was required in the original
release agreement; or
(c) The original release agreement be terminated and the
defendant be denied release pending appeal. Denial of release
pending appeal is at the discretion of the court, except in the
case of a conviction of murder or treason, in which case the
court shall deny release pending appeal.
(3) Upon judgment of conviction, a surety release bond is
exonerated by operation of law and any obligation of the surety
insurer to guarantee the appearance of the defendant as ordered
by the court is discharged. + }
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